BA Nos.9478/2019 &1320/2020

**BA NOS.9478/2019 &1320/2020** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942** ## **Bail Appl..No.9478 OF 2019** **CRIME NO.926/2019 OF MARAYAMUTTAM POLICE STATION , Thiruvananthapuram** ## **PETITIONERS/ACCUSED NOS.1 AND 2:** - **1 M.S.ANIL, AGED 55 YEARS FORMER PRESIDENT, MARAYAMUTTOM SERVICE CO-OPERATIVE BANK, MARAYAMUTTOM, THIRUVANANTHAPURAM, RESIDING AT SANKARA VILASOM, MARAYAMUTTOM, NEYYATTINKARA, THIRUVANANTHAPURAM.** - **2 M.V.SREEJA, AGED 46 YEARS** **FORMER SECRETARY, MARAYAMUTTOM SERVICE CO-OPERATIVE BANK, MARAYAMUTTOM, THIRUVANANTHAPURAM, RESIDING AT SREEJAM, MARAYAMUTTOM, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.B.S.SWATHI KUMAR SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI** ## **RESPONDENT/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.** - **2 ADDL.R2: BALACHANDRAN** - **S/O KARUNAKARAN, BS BHAVAN, CHULLIYOOR, MARAYAMUTTOM, PERUMKADAVILA, THIRUVANANTHAPURAM. 695124** **IS IMPLEADED AS PER ORDER DATED 16/01/2020 IN CRL.M.A. NO. 1/2020** - **3 ADDL.R3.SREEKUMARAN NAIR.N S/O NARAYANAN NAIR, SREESAILAM PLAVILA, MARAYAMUTTOM PO, THIRUVANANTHAPURAM DISTRICT.** **BA NOS.9478/2019 &1320/2020** **2** **4 ADDL.R4: USHA S. W/O.KRISHNAN, AGED 56 YEARS, VALIYAPARAMBU ROADARIKATH VEEDU, MARAYAMUTTOM P.O, THIRUVANANTHAPURAM DISTRICT.** - **5 ADDL.R5: RAJENDRAN, S/O GNANADASAN, AGED 53 YEARS, KARIKKATHIL KULATHINKARA CHULLIYOOR (H), MARAYAMUTTOM PO, THIRUVANANTHAPURAM DISTRICT.** **6 ADDL.R6: SAJEEVARAJAN, AGED 45 YEARS, S/O MADHAVAN NADAR, KEEZHIDANJI MELEPUTHAN VEEDU HOUSE, THATHIYOOR, MARAYAMUTTOM PO, THIRUVANANTHAPURAM DISTRICT.** **ADDITIONAL R3 TO R6 IMPLEADED AS PER ORDER DATED IN 26/2/2020 IN CRL.MA NO.4/2020 IN BA-9478/2019.** **R1 BY PUBLIC PROSECUTOR SRI.RENJITH. T.R. R3 BY ADV. BABU S. NAIR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.08.2020, ALONG WITH Bail Appl..1320/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA NOS.9478/2019 &1320/2020** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942** ## **Bail Appl..No.1320 OF 2020** ## **CRIME NO.926/2019 OF MARAYAMUTTAM POLICE STATION , Thiruvananthapuram** ## **PETITIONERS:** |**1**|**B.MADHUSOODANAN NAIR, AGED 69 YEARS**| |---|---| ||**S/O.BHASKARA PILLAI, ARAMAM, THALLIYOOR,**| ||**MARAYAMUTTOM, NEYYATTINKARA.**| |**2**|**C.C.AYYAPPAN PILLAI, AGED 71 YEARS**| ||**S/O.CHANDRASEKHARAN NAIR,**| ||**MANAKALA PUTHEN VEEDU, CHULLIYOOR,**| ||**MARAYAMUTTOM, NEYYATTINKARA.**| |**3**|**S.MEENA, AGED 42 YEARS**| ||**W/O.MOHANAN, GEETHA BHAVAN, ARUVIPURAM,**| ||**MARAYAMUTTOM, NEYYATTINKARA.**| |**4**|**MANJU.R.L, AGED 39 YEARS**| ||**W/O.SAJINDAS.D.R., ANN COTTAGE, MANALUVILA,**| ||**MARAYAMUTTOM, NEYYATTINKARA.**| |**5**|**USHAKUMARI.R, AGED 48 YEARS**| ||**W/O.PRABHAKARAN NAIR, KARTHIKA, UDIYANPARA,**| ||**THATHIYOOR, MANCHAVILAKOM, NEYYATTINKARA.**| |**6**|**ANANTHAN.M.A, AGED 28 YEARS**| ||**S/O.M.S.ANIL, SANKARA VILASOM,**| ||**MARAYAMUTTOM, NEYYATTINKARA.**| |**7**|**MADHU.K., AGED 48 YEARS**| ||**S/O.KUTTAN NADAR, PANKAJ HOUSE,**| ||**MUZHANGIL NELLIKKALU, KAKKANAM, MARAYAMUTTOM,**| ||**NEYYATTINKARA.**| **BA NOS.9478/2019 &1320/2020** **4** **8 SASIDHARAN NAIR, AGED 70 YEARS S/O.CHELLAPPAN PILLAI, JAYA VILASOM VEEDU, THATHIYOOR, MARAYAMUTTOM, NEYYATTINKARA.** **BY ADVS. SRI.B.S.SWATHI KUMAR SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** - **2 BALACHANDRAN, S/O.KARUNAKARAN, BS BHAVAN, CHULLIYOOR, MARAYAMUTTOM, PERUMKADAVILA, THIRUVANANTHAPURAM-695124.** - **3 ADDL.R3: SREEKUMARAN NAIR.N S/O NARAYANAN NAIR, SREESAILAM PLAVILA, MARAYAMUTTOM PO, THIRUVANANTHAPURAM DISTRICT.** **IS IMPLEADED AS PER DATED 26/2/2020 IN CRL.MA NO.1/2020 IN BA-1320/2020.** **R1 BY PUBLIC PROSECUTOR SRI.RENJITH.T.R. R2 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R3 BY ADV. BABU S. NAIR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.08.2020, ALONG WITH Bail Appl..9478/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA NOS.9478/2019 &1320/2020** **5** ## **O R D E R** **[ Bail Appl..9478/2019, Bail Appl..1320/2020 ] Dated this the 10th day of August 2020** These Bail Applications filed under Section 438 of Criminal Procedure Code ware heard through Video Conference. 2. These bail applications are filed by the accused in crime No.926/2019 of Marayamuttom Police Station, Thiruvananthapuram. The above case is registered against the petitioners and others alleging offences punishable under Sections 406, 420, 465, 467 and 468 r/w 34 IPC. The petitioners in B.A. No.9478/2019 are the 1[st] and 2[nd] accused and the petitioners in B.A No.1320/2020 are accused Nos.5, 6, 13, 14, 12, 11, 9 and 8 respectively. 3. The prosecution case is that the 1[st] accused is the Former President and the 2[nd] accused is the Former Secretary of Marayamuttom Service Co-operative Bank Ltd. Accused Nos.3, 4 and 15 are the employees of the bank. Accused No.11 is the son of the 1[st] accused and all others are the Director Board members of the Marayamuttom Service Co-operative Bank. The first **BA NOS.9478/2019 &1320/2020** **6** information statement given by the defacto complainant is that he is a member and beneficiary of Poultry farming scheme of the Marayamuttom Service Co-operative Bank in the year 2015-16 and that on 11.2.2015 he was given 240 chickens, 2 cages in connection with the above scheme. It is also the case of the complainant that from 28.4.2015 onwards eggs were collected by the Bank and the collection of the eggs were entered in a pass book. After six months poultry was also taken by the bank. The bank assured at the beginning itself that he will be paid Rs.150/per day for this as daily remuneration. On 16.11.2019 he got a registered letter from the bank demanding repayment of an amount of Rs.2,37,146/- due to the bank as arrears of the loan. When he enquired with the bank, he came to know that he had taken loan for two units of Poultry Scheme and it was defaulted. According to the defacto complainant he was not aware of taking of a loan and it is also subsequently noted that the supply of the eggs and chicken was not recorded in the records of the bank. But they are seen recorded in the pass book issued by the Farmers Producers Company having the emblem of Marayamuttom Service Co-operative Bank. He was not informed about any loan to be taken when he joined the scheme. It is alleged that the bank obtained blank signed stamp papers in the beginning and the same was misused and thereby cheated the defacto complainant **BA NOS.9478/2019 &1320/2020** **7** and hence committed the offence. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. Originally the defacto complainant in this case was impleaded as additional 2[nd] respondent. A lawyer appeared on behalf of the 2[nd] respondent. Subsequently, the lawyer relinquished his vakalath. Thereafter the respondent Nos.3 to 6, who are also the victims in this case impleaded. The respondents 3 to 6 represented through a lawyer. 6. Heard the counsel for respondent No.3 to 6 also. 7. The learned counsel for the petitioners submitted that this is a false case registered against the petitioners. According to the counsel, nobody can believe that the petitioners cheated its customers like this. The counsel submitted that the allegation is that loans were disbursed to the customers without their knowledge. The counsel produced certain documents to show that the loan is disbursed in accordance to law. The counsel taken me through Annexure E to R. According to the petitioners, those are usually produced while disbursing the loan to its customers in a Co-operative Societies. According to the counsel, the documents produced are that of the 6[th] respondent. The counsel for the petitioner submitted that the Board of the Society was superseded as per Section 32 of the Co-operative Societies Act and thereafter **BA NOS.9478/2019 &1320/2020** **8** an administrator was appointed. According to the counsel, the petitioners belong to UDF. The petitioners were in charge of the bank for about 20 years. There is no allegations against them on earlier occasions. 8. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that crores and crores of rupees are misappropriated by the petitioners and the other accused. The investigation is going on. The custodial interrogation of the petitioners is necessary. A statement was also filed by the prosecution. 9. The counsel who appeared for respondents 3 to 6 also seriously opposed the bail application. The counsel submitted that it is a clear case of cheating and forgery. The members of this particular society are poor labourers. They don't know about the details of availing a loan from a bank. By misusing their position, the petitioners and other accused cheated them. The counsel also submitted that the loan documents were forged by the petitioners and other accused. Crores and crores of rupees is looted from the Society by the petitioners. The counsel submitted that this is not a fit case to invoke the powers of this Court under Section 438 Cr.P.C. The counsel submitted that the defacto complainant is now supporting the petitioners. Hence the respondents 3 to 6 impleaded in this case. **BA NOS.9478/2019 &1320/2020** **9** 10. After hearing both sides, it is clear that the prosecution mainly relies upon the documents which are available in the bank to prosecute these petitioners. Admittedly, the petitioners are not in charge of the bank now. Even now the administrative committee is in charge of the Society. This bail application was filed on 24.12.2019. It came up before different judges of this Court. When this bail application came up for consideration at first, this Court passed an order on 24/12/2019 in B.A.No.9478/2019 which is extracted hereunder: ## “Heard the learned counsel for the petitioners. It is admitted that the 1[st] petitioner was the elected President of the Bank for the last 23 years continuously and the 2[nd] petitioner was the secretary and now they have been implicated for the offences punishable under Sections 406, 420 read with 34 of the Indian Penal Code on the basis of the Annexure B complaint. Instructions in this matter is awaited. Learned Public Prosecutor seeks time for instruction. In the meanwhile, petitioners shall not be arrested.” 11. Even now, this interim order is pending in this case. If the investigating officer is interested to vacate this order, they could have taken steps to hear this bail application. There is no attempt on the part of the investigating officer to vacate this interim order. The Public Prosecutor opposed this finding and submitted that the interim order was not extended once because of the opposition of the prosecution. I perused the judges papers. It was extended on 4.3.2020 and thereafter on 12.3.2020. **BA NOS.9478/2019 &1320/2020** **10** Subsequently, the stay was extended for a period of three weeks on 19.3.2020. Then the lock down period started and in the light of the Full Bench decision, the interim order continued even now. The Public Prosecutor has serious grievance about the finding that the investigating officer has not taken any steps to vacate the interim order. But it is a fact that these bail applications are pending from December, 2019 onwards. After summer vacation the court started and the bail applications were posted at the request of the parties. A Bench was sitting to hear old bail applications atleast for the last one month. Now these bail applications are posted before this Court because old bail applications are hearing by this Bench. 12. As I stated earlier, the prosecution mainly relies the documentary evidence available in the Society to prove its case. As I stated earlier, it is clear that an administrator is in charge of the Society even now. I do not want to discuss the case on merit. The Public Prosecutor filed a statement on 4.3.2020. In the statement of the investigating officer it is submitted that the custody of the petitioners is necessary because of the following reasons: - “(I) More evidence is to be collected. - (ii) It is to be identified whether more customers are cheated by the accused. - (iii) The signatory at the time of the collection of eggs is to be traced. **BA NOS.9478/2019 &1320/2020** **11** - (iv) The remaining accused are to be arrested and to verify their sample signature. - (v) How the emblem of Co-operative Bank affixed in the pass book issued by the Farmers Producers Company is to be enquired into.” 13. For the purpose of investigating the above aspects, I do not think that the custodial interrogation of the petitioners is necessary. There can be a direction to the petitioners to surrender before the investigating officer within ten days. There can be a direction also to the petitioners to appear before the investigating officer twice in a week. The custodial interrogation of the petitioners is not necessary for arresting co-accused. The custodial interrogation may not be necessary to find out the signatories at the time of collection of eggs. Therefore, the reason for custodial interrogation mentioned in the statement cannot be accepted. The crime is registered in 2019. It is true that serious allegations are raised against the petitioners. The investigation is to be conducted very expeditiously. The investigating officer may be waiting for the disposal of these bail applications to complete the investigation. These bail applications cannot be kept pending indefinitely. Considering the entire facts and circumstances of the case, I think these bail applications can be allowed on stringent conditions. The bail application was filed on 24.12.2019. There is an interim order in favour of the petitioners now restraining **BA NOS.9478/2019 &1320/2020** **12** their arrest. At this distance of time it may not be correct to deny pre-arrest bail to the petitioners. 14. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 15. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 16. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. The petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. **BA NOS.9478/2019 &1320/2020** **13** 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3.The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 4. The petitioners shall surrender their passport before the investigating officer. If they have no passport, they will file an affidavit before the investigating officer to that effect. 5. Petitioners shall not leave India without permission of the jurisdictional Court. 6. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 7. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 7. The petitioners shall appear before the investigating officer on all Mondays and Fridays at 10 am till the final report is filed in this case. **BA NOS.9478/2019 &1320/2020** **14** 8. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **ab**